The Supreme Court's First Hearing of 2012: Private Americans v. Interfering Environmentalists

Posted: Jan 09, 2012 1:26 PM

During the NBC/Facebook GOP debate on Sunday morning, Newt Gingrich made an excellent point about the inability of big federal government to efficiently or effectively enforce its policies, as a top-down bureaucracy is ill-suited to truly understand the unique conditions of specific cases and localities. The consequences usually include a massive waste of taxpayer money and everybody's time, but in the environmental arena specifically, this inability more often than not translates into environmental degradation, the very thing that the EPA is ostensibly designed to prevent. Quoth Newt:

"They were worried that the plowing of a cornfield would leave dust to go to another farmer's cornfield. ... They were planning to issue a regulation. In Arizona, they went in on the dust regulation and suggested to them that maybe if they watered down the earth, they wouldn't have these dust storms in the middle of the year. And people said to them, 'You know, the reason it's called a desert is there's no water.' Now this is an agency out of touch with reality, which I believe is incorrigible, and you need a new agency that is practical, has commonsense, uses economic factors and, in the case [of] pollution, actually incentives change, doesn't just punish it."

The incentives created by property rights and markets are more than capable of solving environmental problems, and communities and local governments are best-suited to decide if and when regulations are necessary.

Case in point: the Supreme Court is kicking off its 2012 docket today with Sackett v. Environmental Protection Agency, an apt example of the type of red tape and uncertainty the EPA inflicts on American property owners and businesses on the regular.

Chantell and Michael Sackett purchased a 0.63-acre lot for $23,000 in 2005 to build a home near scenic Priest Lake in Idaho. After obtaining local permits in 2007, the couple began grading the property with soil and rock in preparation for construction of a three-bedroom house.

But the project came to a halt after EPA officials arrived at the site and informed the Sacketts that the property was a wetland. The regulators said the couple’s efforts to grade the land constituted a form of pollution under the federal Clean Water Act.

The Sacketts disagreed with the “wetlands” designation, noting that a road ran between their property and Priest Lake and that their lot was in a residentially zoned subdivision containing other homes.

The EPA responded by issuing a “compliance order,” requiring them to take immediate action to remove all deposited fill material and restore the lot to its original condition. The order required them to plant new trees and shrubs and to maintain a fence around the lot for three growing seasons.

The restoration would cost an estimated $27,000, according to the Sacketts. The EPA added a potent incentive – the Sacketts would be fined $37,500 each day the couple failed to bring the property within compliance of the EPA order.

The Sacketts asked the EPA to conduct an administrative hearing to examine whether the property really was a “wetland” subject to federal regulation. The agency refused.

The case is only to determine whether the Idaho couple may even seek the help of a federal judge to decide the dispute with the EPA, since the EPA action was an administrative order and not yet an enforcement. The Clean Water Act, we're to believe, is designed to protect the "navigable waters of the United States" against pollution, including wetlands--the problem being that the definition of a wetland is more or less up to the discretion of the EPA. So, instead of spending their time and money productively, by building a home and growing the local economy, the Sacketts are stuck (and likely will remain stuck for some time to come) in a legal battle with an agency that has no business overseeing every individual inch of the American landscape in the first place.

Think about it, taxpayer: why is it efficient for your dollars to pay for the salaries and operations of federal bureaucrats, so they in turn can try to understand the singular characteristics and circumstances of every existing locality and apply the same (poor) policy to each of them? Hint: It isn't, and it's bad for the environment, too.